Dairylea Cooperative, Inc. v. Walkley

• Decision Date: 05 June 1975
• Citation: 368 N.Y.S.2d 877,48 A.D.2d 951
• Parties: In the Matter of DAIRYLEA COOPERATIVE, INC., Appellant, v. Frank WALKLEY, as Commissioner of the Department of Agriculture and Markets ofthe State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 877

368 N.Y.S.2d 877

48 A.D.2d 951

In the Matter of DAIRYLEA COOPERATIVE, INC., Appellant, v. Frank WALKLEY, as Commissioner of the Department of Agriculture and Markets ofthe State of New York et al., Respondents.

Supreme Court, Appellate Division, Third Department.

June 5, 1975.

Bond, Schoeneck & King, Syracuse (John M. Freyer, Syracuse, of counsel), for appellant.

Thomas G. Conway, Albany (Dennis P. Buckley, Albany, of counsel), for respondent Walkley, Commissioner, New York State Dept. of Agriculture and Markets.

Coplin Yaras, Albany (Arthur Karger, New York City, of counsel), for respondent Glen and Mohawk Milk Ass'n, Inc.

Before HERLIHY, P.J., and KANE, REYNOLDS, SWEENEY and MAIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Albany County, entered on September 6, 1974, affirmed, without costs, on the opinion of Larkin, J., at Special Term (79 Misc.2d 707, 360 N.Y.S.2d 945).

HERLIHY, P.J., and KANE and REYNOLDS, JJ., concur.

SWEENEY and MAIN, JJ., dissent and vote to reverse in the following memorandum by SWEENEY, J.

SWEENEY, Justice (dissenting).

While we readily accept must that is expressed in Special Term's opinion, we are unable to agree with its conclusion that petitioner has failed to satisfy the second prong of the standing test as enunciated in Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184.

The court therein stated that standing exists in a 'competitor's' suit when a party alleges (1) that the challenged action has caused him injury in fact, economic or otherwise; and (2) that the interest sought to be protected is arguably within the zone of interests to be protected or regulated by the statute or the constitutional guarantee in question. The court further stated (p. 154, 90 S.Ct. p. 830): 'Where statutes are concerned, the trend is towards enlargement of the class of people who may protest administrative action. The whole drive for enlarging the category of aggrieved 'persons' is symptomatic of that trend'. While it is true that this State does not necessarily have to embrace the Federal rule on standing, it appears from an examination of recent New York cases that the rule laid down in Association of Data Processing Service Orgs. has been followed. (Columbia Gas of N.Y. v. New York State Elec. & Gas Corp., 28 N.Y.2d 117, 320 N.Y.S.2d 57, 268 N.E.2d 790; New York State Bankers Assn. v. Albright, 46 A.D.2d 269, 361 N.Y.S.2d 949; Boston Stock Exchange v. State Tax Comm., 45 A.D.2d 365, 357 N.Y.S.2d 116.)

To resolve the present appeal, we examine the petition in the light of this recently adopted rule. The first requirement of the test has, undoubtedly, been satisfied. Petitioner's allegations of economic injury are abundant.

As to the second requirement, petitioner alleges that the issuance of a license to Glen-Mohawk to sell milk in Rockland and Orange counties will 'effectively destroy competition in a market which is now adequately served by Dairylea and several other licensed milk dealers.' Petitioner further alleges in its supplemental petition that the existing licensees serving the area are operating at less than full capacity; that the license extension will result in losses to existing licensees, their cost structure will be increased thereby and the stability of the milk market in the County of Rockland and the southern portion of Orange County will be disturbed by such extension.

To determine whether there is compliance with the second prong of the test, the one rejected by Special Term, we must also examine section 258--c of the Agriculture and Markets Law to ascertain if petitioner's interest is arguable within the zone of interests to be protected by that statute. The purpose and...